One of the more interesting exchanges to emerge from the Supreme Court hearings on gay marriage this week, wasn't about the sexes, instead it was when Justice Sonia Sotomayor asked a question about polygamy.

Sotomayor asked Ted Olson, the lawyer asking the court to repeal California's ban on gay marriage, that if he was right and "marriage is a fundamental right" could any state restrictions ever exist. In other words, does declaring gay marriage a civil right, pave the way to legalization of, say, polygamy?

Olson responded:

"You've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you — if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case."

During the second hearing, which considered the constitutionality of the Defense of Marriage Act, attorney Paul Clement took the opposing position, saying the government has the right to define marriage as between a man and a woman.

"If you look at historically, not only has the Federal Government defined marriage for its own purposes distinctly in the context of particular — particular programs, it's also intervened in — in other areas, including in-state prerogatives," Clement siad. "I mean, there's a reason that four state constitutions include a prohibition on polygamy. It's because the Federal Congress insisted on them."

All Things Considered's Robert Siegel had the same question, so, today, he talked to Jonathan Turley, a law professor at George Washington University, who represents the reality TV stars "Sister Wives," and is seeking to overturn a Utah law that effectively bans polygamy.

Turley said that polygamy is now where gay marriage was a decade ago, when Supreme Court decided Lawrence v. Texas, which stopped states from prohibiting sexual acts between same-sex couples. The implication is that polygamy will move forward in time.

"You cannot defend a new civil liberty, while denying it to others. I think there's a grander more magnificent trend that can see in the law and that is this right to be left alone," Turley said. "People have a right to establish their families as long as they don't harm others."

...Doug...it ignores the equal protection and contract clauses, which requires states to recognize contracts made in other states. DOMA does violate that.

States, I agree, could be required to honor the contract between spouse 1 and spouse 2 (formerly referred to as husband and wife) as they travel freely through a different state or move there. How does that change the contract between state 2 and individual 1 or 2 as it applies to taxes or anything else, if the marriage preference (or penalty) in that state is defined as applying only to one-man-one-woman-marriages?

Can one state legislature, or ten of them, change the definition of a federal tax benefit when DOMA so specifically lays out what in federal law is defined as qualifying for that preference?

If the issue truly is equal protection, I still fail to see how adding one group or two to the preferred group remedies the equal protection violation. No one to my awareness ever answers that.

The tax code is filled with preferences for all kinds of reasons. Encouraging households potentially capable of natural offspring to marry is about as rational of a basis as there can be if we are to accept any preference. [Of course rational basis is out the window here.) Must everyone get a credit for not planting wheat in their yard if any farmer gets that deduction? Isn't almost every page of the 8000 page Federal Tax Code loaded with preferences toward individuals from named groups and discrimination against everyone else?

I get it that at least one Justice will see 'heightened scrutiny' applying to sexual orientation and other Justices will follow, but I don't see 'heightened scrutiny for sexual orientation' in the original text or meaning of the original words in the constitution. Why didn't the Court strike down all marriage preferences when they first came out? Obviously marriage as it was defined then was a hetero-phenonmenon, and it didn't even reach all heteros. Was there no challenge on equal protection in the tax code until now or were the precedents from the past wrongly decided?

I favor all income from all people in all industries, earned legally, taxed the same, which would have solved most of this. Estates are essentially an accumulation of after tax income. Some other clause, takings, or cruel and unusual punishment ought to stop the legislating of theft of those privately held assets. ------------

From GM's post: "You cannot defend a new civil liberty, while denying it to others [the Polygamists]. I think there's a grander more magnificent trend that can see in the law and that is this right to be left alone," Turley said. "People have a right to establish their families as long as they don't harm others."

First of all, who is stopping them?

To my friends who innocently ask how gay marriage can possibly affect their marriage, resolving this contentious issue forcefully through the courts perhaps just ended their marriage in terms of every public policy recognition or preference as we knew it. The acceptance of gay marriage coincided with the abandonment of conventional marriage. The majority of all kids are now born out of wedlock and are thus empirically more likely to be poor and have other problems. Meanwhile gay men and virgin lesbians are getting pregnant. Mother and father are now federally called Parent One and Parent Two. Equality and degradation of our greatest institutions are synonymous and within our reach. All to achieve nothing that looks like equal protection under the law IMHO.

GM, I was answering question that Doug asked me about how my vote would go down if I were on the Court. When the polygamy case to the court, let's discuss it. Next time I am asked a question by a SCOTUS justice, I'll address it. Ted Olson is smarter than I, what can I say?

"Sotomayor asked Ted Olson, the lawyer asking the court to repeal California's ban on gay marriage, that if he was right and "marriage is a fundamental right" could any state restrictions ever exist. In other words, does declaring gay marriage a civil right, pave the way to legalization of, say, polygamy?"

A real good question from the "Unwise Latina". Please feel free to have at it BD.

Olsen:

"You've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you — if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case."

Now, this logic presents some interesting questions of own. If the standard is conduct, then on what basis are the sodomy laws unconstitutional? On what basis do the anti-discrimination statutes defend? On what basis can it be claimed to to have marriage be a violation of equal protection?

"GM, I was answering question that Doug asked me about how my vote would go down if I were on the Court."

This is true and I am appreciative of all the responses. Knowing we disagree, the best we can do is test out the arguments in both directions and see where they lead. No pressure, but the Justices may be checking the forum before they decide. I have lived to regret telling Justice Roberts that Obamacare is a tax.

In tax law, the progressive rate system fails the equal protection test IMO, but is justifiable to others on a concept understood as 'equal protection, different circumstances'. We don't apply the top rate to every dollar or every person; taxpayers have different circumstances. If you were in that situation, that rate would apply to you too. I can't take the depletion deduction of a gold mine because I don't own one. Is that unfair? The blind get an extra deduction. I would have to poke both eyes out to qualify. Probably easier for a gay to pretend to be hetero. A gay can't find happiness in a one man one woman marriage but he or she is free to pursue happiness elsewhere and not receive that legislated benefit. The majority of the 4 trillion dollar budget consists of checks sent to preferred recipients for one reason or another, and not me. If I could not serve in the military because of condition in me from birth or genetics, should I still receive veterans' benefits? I don't see how you logically pick at the edges of a government built on preferences without bringing down the whole system.

"...one lawsuit making its way through the court system could pull the plug on the sweeping federal health care law.

A challenge filed by the Pacific Legal Foundation contends that the Affordable Care Act is unconstitutional because the bill originated in the Senate, not the House. Under the Origination Clause of the Constitution, all bills raising revenue must begin in the House.

The Supreme Court upheld most provisions of the act in June, but Chief Justice John G. Roberts Jr. took pains in the majority opinion to define Obamacare as a federal tax, not a mandate. That was when the Sacramento, Calif.-based foundation’s attorneys had their “aha” moment.

“The court there quite explicitly says, ‘This is not a law passed under the Commerce Clause; this is just a tax,’” foundation attorney Timothy Sandefur said at a Cato Institute forum on legal challenges to the health care act. “Well, then the Origination Clause ought to apply...

1, states already allow incest. Do you know how many states allow first cousins to marry? Do you want to overturn those laws, GM, even though they are between a man and a woman?

No state allows brothers/sisters to marry. Is that a violation of their equal protection rights? What if first cousins are legally married in one state and then move to a state where it's illegal?

2, states allow girls to marry men, when those females are not yet legal of legal voting, drinking, etc. age. Do you want to overturn those laws, GM, even though at least one of the marriage partners is still a minor?

I probably would.

3, how much of using a dictionary to define marriage is circular logic? Could it be that the dictionary definition has changed to define marriage as a man/woman because the state defines as such?

Because words are supposed to mean things, though as our society continues to degrade, the left uses words to destroy ideas. See Orwell's "love is hate", "peace is war" now we have "Homosexuality is marriage".

4, there are plenty of biblical marriages which are not a man and a woman. Or marriage laws/rules that we now hold be anachronistic.

Rather than looking at 1000s of years ago on another side of the planet, let's look at American culture in the last few centuries. Let's look at cultural/legal constructs that actually function. Even under Jim Crow laws, intact black families resulted in low crime rates and success against a stacked deck. Look at what the destruction of the black family has brought about. We are seeing the same thing happen with whites now and with the same results.

5, since you are into logic: since Mormons believe in pologamy, and since Mormons are Christian, polygamy is Christian.

Actually the mainstream LDS vehemently reject that doctrine and rapidly excommunicate anyone engaging in such conduct. The state of Utah is also pretty aggressive in prosecuting such things.

1, states already allow incest. Do you know how many states allow first cousins to marry? Do you want to overturn those laws, GM, even though they are between a man and a woman?

No state allows brothers/sisters to marry. Is that a violation of their equal protection rights? What if first cousins are legally married in one state and then move to a state where it's illegal?

Then the marriage contract follows them, GM. You know this. Only in the case of gay marriage is this not the case.

2, states allow girls to marry men, when those females are not yet legal of legal voting, drinking, etc. age. Do you want to overturn those laws, GM, even though at least one of the marriage partners is still a minor?

I probably would.

3, how much of using a dictionary to define marriage is circular logic? Could it be that the dictionary definition has changed to define marriage as a man/woman because the state defines as such?

Because words are supposed to mean things, though as our society continues to degrade, the left uses words to destroy ideas. See Orwell's "love is hate", "peace is war" now we have "Homosexuality is marriage".

4, there are plenty of biblical marriages which are not a man and a woman. Or marriage laws/rules that we now hold be anachronistic.

Rather than looking at 1000s of years ago on another side of the planet, let's look at American culture in the last few centuries. Let's look at cultural/legal constructs that actually function. Even under Jim Crow laws, intact black families resulted in low crime rates and success against a stacked deck. Look at what the destruction of the black family has brought about. We are seeing the same thing happen with whites now and with the same results.

Oh, no, you don't get off that easy. People are bombarded with the marriage is man and wife and we know this because of the Garden of Eden, or other scriptual reasons.

5, since you are into logic: since Mormons believe in pologamy, and since Mormons are Christian, polygamy is Christian.

Actually the mainstream LDS vehemently reject that doctrine and rapidly excommunicate anyone engaging in such conduct. The state of Utah is also pretty aggressive in prosecuting such things.

Actually, you continue in your circular reasoning. To survive after the imposition of marriage laws, and leaving Illinois (at least) due to marital repression and settling in Utah, where there were again told that they could not engage in polygamy, LDS changed its view.

Again, I ask... why are you three all libertarian when it suits your other views, but all over state repression when you disagree with an action?

Why would a right depend on a vote of the people?

Why don't you see the logic that religious freedoms are also for those who have religious views and practices that you don't share?

As for polygamy, I appreciate the offer to answer a question I was obviously relunctant to answer. The question before the Court is gay marriage. that's it. Only gay marriage. Therefore, according to the rules/normes/mores of the Court, the only question that should be answered is about gay marriage. Why did Sotomayor ask. I suspect it had not to do to allay her fears, but either Kennedy's or Roberts's.

I think that the polygamy question is the last gasps of a conservative minority of this country to change the question in the hopes of scaring people about the spectre of the demise of the country. It has nothing to do with the question before the Court.

Again, I ask... why are you three all libertarian when it suits your other views, but all over state repression when you disagree with an action?

I'm against homosexual activists and their leftist associates shoving their conduct down the public's throats. I'm against activist judges overturning the will of the people so the force of law can be used to intimdate and lash out at those who don't buy into their conduct.

As far as what consenting adults do in the privacy of their own homes, I could care less. That correctly should be outside government regulation, meeting those articulated standards. This isn't about freedom to cohabitate, it's about creating a legal status to bludgeon others with.

Again, I ask... why are you three all libertarian when it suits your other views, but all over state repression when you disagree with an action?

I'm against homosexual activists and their leftist associates shoving their conduct down the public's throats. I'm against activist judges overturning the will of the people so the force of law can be used to intimdate and lash out at those who don't buy into their conduct.

As far as what consenting adults do in the privacy of their own homes, I could care less. That correctly should be outside government regulation, meeting those articulated standards. This isn't about freedom to cohabitate, it's about creating a legal status to bludgeon others with.

This is helpful, thank you. I disagree, in that the Constitution provisions, including the ones I've mentioned throughout should be beyond the scope of majoritarian rules. See, as another example, the Second Amendment protections no matter the public opinion.

The libertarian position, as I see it, is/should be that people are free to be gay and others are free to make of it what they will. The root of the problem is exactly as GM says

"This isn't about freedom to cohabitate, it's about creating a legal status to bludgeon others with."

The problem here is that liberal fascism is creating a legal environment wherein people are not free to make of it what they will, where they are coerced by the power of the state to act contrary to their sense of things.

As for polygamy, I submit that the question most certainaly IS fairly presented. The logic being proffered to change the definition of language ineluctably leads to it, so lets address it now.

The libertarian position, as I see it, is/should be that people are free to be gay and others are free to make of it what they will. The root of the problem is exactly as GM says

"This isn't about freedom to cohabitate, it's about creating a legal status to bludgeon others with." OK. Perhaps I am a different type of libertarian, then. Can there be only one type of libertarian?

The problem here is that liberal fascism is creating a legal environment wherein people are not free to make of it what they will, where they are coerced by the power of the state to act contrary to their sense of things. I disagree. But you know that. And none of us will change our minds.

As for polygamy, I submit that the question most certainaly IS fairly presented. The logic being proffered to change the definition of language ineluctably leads to it, so lets address it now. Go ahead. As I have stated, I DON"T see the logic "leads to" polygamy. Since I don't share this view, I am uncertain what you want me to address.

"Sotomayor asked Ted Olson, the lawyer asking the court to repeal California's ban on gay marriage, that if he was right and "marriage is a fundamental right" could any state restrictions ever exist. In other words, does declaring gay marriage a civil right, pave the way to legalization of, say, polygamy?"

No. A fundamental right and a right are not the same thing. Hence the difference between strict scrutiny and heightened scrutiny. And, as I have already said, I think: A) were I a justice, this is what I would use and B) this is the level I expect that the Court will use.

Sorry to be as slow as the Unwise Latina here, but it has been a while since law school and your shorthand about heightenend and strict scrutiny is not registering for me. Isn't Olsen's argument that marriage is a fundamental right? and don't fundamental rights get strict scrutiny?

Anyway, are you saying that hetero marriage does not meet the scrutiny level (whatever it is) but polygamy does not? What is the basis for your distinction?

Sorry to be as slow as the Unwise Latina here, but it has been a while since law school and your shorthand about heightenend and strict scrutiny is not registering for me. Isn't Olsen's argument that marriage is a fundamental right? and don't fundamental rights get strict scrutiny?

I didn't know you wanted me to agree with T.O.

Anyway, are you saying that hetero marriage does not meet the scrutiny level (whatever it is) but polygamy does not? What is the basis for your distinction?

And, I am saying that homosexuals have been discriminated against in a manner consistent with the need for heightened scrutiny.

Lesbian, gay, bisexual and transgender people are better at managing their money than the average American, new research shows.They earn more, save more, have less debt and are better prepared for retirement...Respondents not only reported significantly higher annual incomes -- $61,500 compared with the national median of $50,054 -- but they also carried about $4,000 less in debt than the average American and had $6,000 more in household savings. They were even slightly more likely to have jobs in the first place, with an unemployment rate of 7% versus the national rate of 7.9%.

When the Mormons began to openly practice polygamy in 1852, they lived in the rural West, far from the reaches of the federal government.

However, as the government’s influence and control began to expand farther and father west, the issue of polygamy and the Mormons became a hot political topic. It became so hot that the Republicans called slavery and polygamy the "twin relics of barbarism”—and accused Democrats of supporting both.

More of the story:

The strong arm of the law.

So private citizens and the government crusaded to end polygamy—mostly through laws. Congress passed a series of laws: The Morrill Anti-Bigamy Act of 1862 prohibited polygamy in the territories. It also limited the value of the land that the LDS church could own, among other things. The Poland Act of 1874 took away the LDS church’s power over the territory’s judicial system.The Edmunds Act of 1882 made polygamy a felony, prohibited “unlawful cohabitation,” and took away polygamists’ right to vote and hold political office.The Edmunds-Tucker Act of 1887 disincorporated the LDS church, allowed the government to seize church assets, punished offenders with large fines and prison, required wives to testify against husbands, and more.

Federal marshals arrested many men, who spent time in prison. Other polygamists went into hiding, including LDS church president John Taylor.

Perhaps more serious than the imprisonment of individuals, the acts threatened to bankrupt the LDS church and polygamy was preventing Utah from becoming a state.

In 1890 the Supreme Court ruled in 1890 that the government could indeed seize church property—including temples. With no options left, church president Wilford Woodruff issued a “Manifesto” advising Mormons not to take part in any illegal marriages.

This Manifesto put the rest of the country at ease. Utah could then move toward statehood, which it achieved in 1896.

Saying it more emphatically.

The Manifesto was not very clear, especially for those already in plural marriages. And despite the church’s “advice” not to do it, many people continued to enter into polygamy.

When Americans realized polygamy was continuing, the controversy heated up again. The U.S. Senate refused to seat Reed Smoot, a Mormon apostle who had been elected senator. The long debate over Smoot was big news all over the country.

In 1904 church president Joseph F. Smith issued a more specific and binding decree about polygamy. Among other things, the decree stated that anyone caught entering or performing a plural marriage after 1904 would be subject to excommunication.

Today the practice of polygamy in the United States is continued by groups that are not associated with the LDS church. They are known as FLDS groups, meaning Fundamental Latter-day Saints.

A Vermont couple who agreed to pay $30,000 to settle a discrimination lawsuit filed on behalf of a lesbian couple from New York who claimed that their Inn refused to host their wedding reception because they were a same-sex couple, appear in a new ad advocating against same-sex marriage in neighboring Maine.

Jim and Mary O’Reilly, owners of the Wildflower Inn in Lyndonville, Vt., were charged with violating the Vermont Fair Housing and Public Accommodations Act, which prohibits public accommodations from denying goods and services based on customers’ sexual orientation. The law applies to inns, restaurants, schools, stores, and any other business that serves the general public.

The couple, who say they are devout Catholics, could not “offer our services wholeheartedly to celebrate the marriage between same-sex couples because it goes against everything that we as Catholics believe in.”

They are now using the lawsuit and settlement as a warning to Maine voters to discourage them from support a marriage equality initiative on the November ballot:

Watch:

The couple said in the video that because of the lawsuit, they “can no longer host any weddings” at their Inn, when in fact, the Vermont statute only prohibits them from discriminating against gay couples. It was their decision to discontinue wedding services to avoid hosting gay and lesbian couples.

What is the basis for saying that discrimination that is based upon behavior is illegal?BD:

Regardless of the standard to be applied, the Unwise Latina's question remains. The logic of the pro-gay marriage position also applies to polygamy. As best as I can tell, you are ducking this.

Behavior? Like voting? Riding a bus? Working? Buying a gun? Bearing an arm? Starting a business? I can't think of a single reason why any behavior should be protected.

I have expressed reluctance about answering the question for two days. I then answered it the best way that I know how, based on my understanding of the question, the cases and the Constitution. If, after not wanting to answer to doing that very thing you still feel I am ducking the question, I have nothing left to offer the conversation. I wish you all well in finding truth in this question.

Thoughts while we await the Supreme Court’s decisions on same sex marriage: Most people, politicians and real people alike, can’t seem to make the distinction between druthers and constitutional mandates. We are now being inundated with polls showing a dramatic change in the opinions of the body politic concerning gay marriage. It seems that now most people think that same-sex marriage should be legally recognized. Presumably, this means that all of the state laws not allowing it should be struck down. Suddenly among most of the nation’s chattering class, anyone who thinks otherwise is a Neanderthal.

To a certain extent, both sides of the debate miss the point. On the same-sex marriage side, it is said that constitutional interpretation should comport with evolving public opinion, without the inconvenience of having to amend the Constitution. They believe that, unlike yesterday, today “equal protection” requires that states must recognize same-sex marriage; that “equal protection” means what it says. I assume that this would mean same-sex bathrooms at public facilities and a requirement that we draft women if we ever reinstitute the draft. It would mean that a state could not treat adults and children differently in some cases. Such an interpretation of the equal protection clause would, of course, have been baffling to the drafters of this provision and to courts of the last 200 years. That clause means that those who are similarly situated must be treated similarly without good reason—a rational basis for not doing so.

The left call for the literal interpretation of the Constitutiion only when it fits their needs, and it is misplaced here. The “literal” wording of the 1st Amendment says that Congress shall make no laws abridging the freedom of speech or of the press, but we have laws prohibiting falsely crying fire in a crowded theater as well as laws against libel. The 2nd Amendment says that our right to keep and bare arms shall not be infringed, but there are numerous permissible regulations which qualify that right. Similarly, equal protection has never meant that all people must be treated exactly the same at all times, regardless of the circumstances

There is nothing new in the proponents’ argument. According to them, the Constitution must be interpreted as having “evolved,” as Gallup tells us that public opinion has evolved. The idea of amending an out-of- date constitutional provision is essentially a relic even though it is one constitutional provision that is totally unambiguous with regard to the framer’s intent.

On the other hand many who oppose same-sex marriage argue that it would be much better to let the states and the democratic process decide the matter. I believe that they are correct, but their policy argument begs the question. Is a state law prohibiting it unconstitutional? If it is, it doesn’t matter if I or most people think that it is the “better” approach. We should not fall into a policy debate that should not be decided by the judiciary. Just a a poll should not be determinative, one’s notion of what is the best policy should not be determinative either. The argument should be that such a law is simply not unconstitutional and never has been. Federalism is not only wise, it is enshrined in the Constitutiion. The Constitution granted authority with regards to such matters to the states. And laws passed pursuant to this authority, which have been based upon thousands of years of human history, should be honored untill we change our minds through the sometimes inefficient process known as the Rule of Law.

“I mean, taxwise it’s an interesting one, because… You see, could a father not marry his son?… It’s not incest between men. Incest is there to protect us from inbreeding. But men don’t breed, so incest wouldn’t cover that. Now if that were so, then if I wanted to pass on my estate without death duties, I could marry my son, and pass on my estate to him.”

Zepps replies that there’s still a “moral approbation” associated with incest, which seems like an odd argument to make regarding any aspect of gay marriage. If we’re going to disregard some people’s “moral approbation” about homosexuality, why should anybody’s “moral approbation” about incest continue to be encoded in law? Saying that it can’t happen because it’s illegal is pretty silly, when you’re talking about changing the law in the first place.

To borrow an argument from gay-marriage proponents: How would a marriage between father and son affect your marriage, gay or straight? How would it take anything away from your marriage? Who are you to tell someone else what the institution of marriage should and shouldn’t be?

But that’s just resorting to logic and making people face the ramifications of their own rhetoric, which is why people like John Aravosis and Sarah Karlan and Mary Elizabeth Williams are hyperventilating over it. You’re not supposed to talk about the unintended consequences, you bigots. They’re unintended!

Jeremy Irons seems confident enough in himself and his opinions not to be worried about getting kicked out of the Cool Kids’ Club. I sincerely thank him for what is sure to be another entertaining meltdown from our moral, ethical, and intellectual betters on the left.

How Congress Puts Itself Above the Law The only way to finally end the sorry tradition of congressional exemptions is with a 28th Amendment..By GERALD D. SKONING

For years, some have argued that we need a 28th Amendment to the Constitution providing that all members of Congress have to comply with all laws that other citizens have to obey. "Congress shall make no law," the amendment might read, "that applies to the citizens of the United States that does not apply equally to the senators and/or representatives; and, Congress shall make no law that applies to the senators and/or representatives that does not apply equally to the citizens of the United States."

Others apparently have faith in the high moral character of their elected officials and argue that we shouldn't have to enact a constitutional amendment to make sure Congress follows the same laws all Americans do.

Yet history shows that is definitely not the case. Over the decades, Congress has passed innumerable statutes that regulate every aspect of life in the American workplace, then quickly exempted themselves.

In 1938, when the Fair Labor Standards Act established the minimum wage, the 40-hour workweek, and time and a half for overtime, Congress exempted itself from coverage of the law. As a result, for decades congressional employees were left without the protections afforded the rest of Americans working in private industry.

In 1964, with great fanfare, President Johnson signed the landmark Civil Rights Act, including Title VII, which for the first time protected all Americans from employment discrimination on the basis of race, color, religion, sex or national origin. But the law exempted Congress from its coverage, so thousands of staffers and other employees on the Hill were left with no equal-opportunity protection. Staffers could be discriminated against or sexually harassed with legal impunity.

Some will remember Bob Packwood, the former senator from Oregon who resigned his seat in 1995 under threat of expulsion for alleged serial harassment of female staffers and lobbyists. The women who alleged they had been repeatedly victimized by the senator had no legal recourse under federal law. Had Mr. Packwood been a corporate executive instead of a lawmaker, he likely would have been sued for millions.

The same blanket congressional exemption found in Title VII was contained in a total of 10 other federal statutes regulating the American workplace, including protections from age and disability discrimination, occupational safety and health rules, family and medical leave, and many other issues that Congress felt important enough to impose on American industry. These federal laws apply to all civilian employees in the U.S., except those working on the Hill.

Critics advanced the rather sensible and straightforward proposition that U.S. lawmakers should live by the same laws they impose on private employers and state and local elected officials.

Nonetheless, when the comprehensive reform of the Civil Rights Act of 1991 was passed, efforts to eliminate the exemption failed. The immunity of members of Congress from lawsuits for compensatory and punitive damages in cases of employment discrimination continued.

Instead, the federal lawmakers enacted a toothless, self-policing system whereby Congress investigated and enforced its own compliance with civil-rights laws.

Given the choice, private employers no doubt would welcome the opportunity to police themselves on matters of equal-employment opportunity. Who wouldn't prefer self-regulation over dealing with government enforcement agencies and federal court juries considering punitive damages? However, unlike the Congress, private employers don't have the option of self-regulation.

Pressure on Congress mounted and finally, in 1995, with Republicans in control of the House and Senate, the Congressional Accountability Act was passed, eliminating the congressional exemption for all workplace laws and regulations. Some thought passage of the law marked the end of congressional exceptionalism through exemption. They were mistaken.

Insider trading (the buying and selling of stocks based on insider information not available to the general public) has been a violation of federal securities laws for almost 80 years. Yet it was never illegal for members of Congress. Not, that is, until a November 2011 report by CBS's "60 Minutes" shamed Congress into changing the law to prohibit members of Congress and their staffs from trading on inside information. The report was largely based on research conducted by the Hoover Institution's Peter Schweizer for his book, "Throw Them All Out," published that same month. Speaking about the legislators capitalizing on their positions, Mr. Schweizer told Steve Kroft on the program: "This is a venture opportunity. This is an opportunity to leverage your position in public service and use that position to enrich yourself, your friends and your family."

Six months after the "60 Minutes" segment with Mr. Schweizer aired, Congress passed and the president signed the Stop Trading on Congressional Knowledge Act of 2012, which bans insider trading by lawmakers and their staffs. But just last week, while voters were focused on emotional issues such as immigration and gun control, House and Senate members voted to repeal a key provision of the so-called Stock Act—the one that required online posting of their financial transactions.

It's not yet clear whether the president will sign the repeal, but it shouldn't be necessary to take a piecemeal approach to rolling back congressional exemptions, ending them—as with the ones for workplace rules and insider trading—only when they become embarrassing. Nor will blocking exemptions here and there prevent members of Congress, particularly those who serve numerous terms, from developing a sense of privilege that makes them think they're above the law.

America shouldn't need to amend the Constitution to ensure that elected leaders comply with the laws of the land. But given the sorry history of congressional leadership by exemption rather than by example, a 28th Amendment doing precisely that makes sense.

The Obama administration asked the Supreme Court on Thursday to restore the President’s power to fill vacancies in government posts when the Senate is out of town. The petition argued that the D.C. Circuit Court got it wrong in January in sharply curtailing that authority. (The Circuit Court’s ruling — discussed in this earlier post – is attached as an appendix to the petition but also can be read here.)

OK, but Griswold says 1, 3, 5, 7 and 9. With its specificity, my answer to "does" would still be no.

I very much appreciate Bigdog's answer, provided in the context of precedent and settled case law. I need to go back and re-read Griswold to better understand the meaning. A follow up question for BD, if I may ask: Should a right of privacy apply to gun ownership? (And if not, why not?)

This question is crucial in the gun control debate. The biggest point of contention remaining is whether or not the government at any level should be keeping a registry. The publishing of the gun owners and addresses in one area reportedly led to break-ins of those homes. Once a gun purchase is approved, the ownership of that gun is a fundamental right. Shouldn't there be a privacy right associated with that transaction and resulting ownership?-----

It seems to me (mentioned previously) that a real 'right of privacy' is something we recognize quite selectively and step on quite freely when it doesn't fit with our other objectives.

A right of privacy was recognized by the Court in the Griswold decision to protect the choice of using birth control. Privacy applies to homosexual acts in Lawrence, but not to everything that happens in a bedroom. Privacy guarantees the right to slaughter your unborn young in Roe, up to a point, and less so after the decisions of Webster and Casey. Where else does privacy apply? Where else should it apply? Are tax returns private? Gun ownership? Census questionnaire information disclosed? Is a Colorado medical marijuana license list private - even if it is a violation of federal law? Why is there no right of privacy associated with the procurement of health care services?

Did the right of privacy originate in these Court decisions or did it pre-exist, on all private matters, as a fundamental right, and require a compelling state interest in order to limit or violate it?

State court rulings that struck down the constitutional process of selecting electors should have been left alone?

Her career on the Court was marked by a lot of things of which she was uncertain. Being a Supreme Court Justice without a core principle must have been a heart-wrenching experience. Her 25 year affirmative action / unequal protection need was derived from which article or amendment?

"When I go and sit in the courtroom and look at the bench and see three women, it perks me up," she said.

When I see a Justice Alito of any gender sitting in her seat, it perks me up!

I am sensing the beginning of a very good discussion here on privacy. In that we already have a thread for Constitutional privacy issues, may I ask that we take it there? Doug, would you be so kind as to restate your excellent questions over there?

TIA,Marc

PS: Good point about privacy and the procurement of health care. Although obvious, I confess I had not made that connection.

Although most of O’Connor’s papers are private, her legendary secrecy could not prevent the publication of her correspondence with others, including Goldwater, who saved her letters to him. On November 1, 1988, then-sitting Justice O’Connor wrote to Goldwater to bemoan the state of the nation on the eve of the presidential contest between Democrat Michael Dukakis and Republican George H.W. Bush.

What are these "democracy" skills? Think about what is required for a politically active nation. As a juror, you are asked to "vote" based on contested facts. You must debate issues framed by contesting parties. This involves listening to others and tolerating dissenting views (as well as expressing your own opinions). Jurors necessarily expand their social interaction with different types of people, broadening perspectives, contacts, and sources of information. To apply the law jurors must understand the law, the rights of the parties, and the legal rules guiding the decision. Each of these participatory skills--deliberation, debate, tolerance, cooperation, civility, legal decision making--is what we need for a democracy to work. The participatory aspect of jury duty shapes our constitutional character. Those habits and skills, our civic education, helps define who we are as Americans.

Or, as another example, take the value of deliberation. In the very first sentence of The Federalist Papers, a collection of essays and arguments in favor of the U.S. Constitution, Alexander Hamilton invited Americans to this different way of deciding, "You are called upon to deliberate on a new Constitution," he wrote (emphasis added). It was a call that perfectly fits the thinking of a democracy. Deliberation involves collective decision making--a willingness to think together using reason and informed discussion to come to a final decision.

The history of the Federalist Society is a story of how disaffection, bold ideas, commitment to principle, and enlightened institution-building have created a significant conservative shift in the legal, policy, and political landscape of America over the past 30 years. The society reports that more than 45,000 lawyers and law students are involved in its various activities, with approximately 13,000 dues-paying members. With a national budget of about $10-million, in 2010 its 75 lawyer chapters sponsored nearly 300 events for more than 25,000 lawyers, and the society sponsored 1,145 events at law schools for more than 70,000 students, professors, and others. Through conferences, debates, publications, litigation, education, and by holding key positions in government and the judiciary, the society has changed law and policy in areas like property rights, access to courts, affirmative action, privacy rights including abortion and same-sex marriage, and the influence of international law on the domestic legal system.

The history of the Federalist Society is a story of how disaffection, bold ideas, commitment to principle, and enlightened institution-building have created a significant conservative shift in the legal, policy, and political landscape of America over the past 30 years. The society reports that more than 45,000 lawyers and law students are involved in its various activities, with approximately 13,000 dues-paying members. With a national budget of about $10-million, in 2010 its 75 lawyer chapters sponsored nearly 300 events for more than 25,000 lawyers, and the society sponsored 1,145 events at law schools for more than 70,000 students, professors, and others. Through conferences, debates, publications, litigation, education, and by holding key positions in government and the judiciary, the society has changed law and policy in areas like property rights, access to courts, affirmative action, privacy rights including abortion and same-sex marriage, and the influence of international law on the domestic legal system.

Property rights are getting worse. Privacy rights apply only to liberal causes. Roe v. Wade is still essentially the law of the land. Obamacare, the biggest government takeover in history, was upheld. Affirmative action is still happening. The great influence the 'federalists' had on Republican appointments didn't seem so powerful during the Harriet Meirs choice. Or Sandra Day O'Connor, or David Souter. Government powers keep growing while individual rights keep shrinking, in my view. Wickard can still stop Filburn from growing wheat on his own property to feed his own animals. We are perhaps down to one conservative on the Court. The authors obviously come at this from a very different perspective.

Bigdog: "And there has been plenty of literature of how the current SC is among the most pro-business in history."

GM: "There is a critical difference between being "pro-business" which can mean "pro-big contributors who bought access to public funds and get laws passed to suppress competition" and pro-free market."

Conservatism does not encompass support for big contributors to buy access to public funds and preferential treatment. True that elected officials who said they were conservative have done this, but it is the exact opposite of all conservative principles, judicial, economic or political, as I understand them.

Not cited by anyone here, but an example of what the literature views as a pro-business decision is Kelo, where big 'business' was the alleged winner over the homeowners. This is a conservative win only if conservatism has no meaning. Business in bed with government power is government, not free enterprise. Like Wickard, Obamacare, and so many others, this was a case of big government expanding its own central planning and control powers over the most basic rights of citizens. It gives government-connected enterprises a path around free market constraints get what they want using the methods of fascism, not freedom. I've been to the private takings court and lost. In New London it was homeowners, but more often the victims of private takings are smaller businesses without government ties in favor of government's deeper pocket cronies.

Growing your own food on your land to feed your own animals is a Court-upheld, federal offense from the 1930s. The pattern of the more recent rulings has not been to uphold, strengthen and expand on these powers. Where, in the last 30 years, did the 'conservative' Court roll back any of the excesses of the New Deal era? If it did, I missed it.--------------

"We are perhaps down to one conservative on the Court."

There are quite a few Justice Thomas sole dissent opinions on the record. I'll post one in its entirety below, NFIB v. Sebelius (a.k.a. Obamacare), in which Thomas disagreed with the court's "substantial effects" test established in the Wickard, Morrison, and Gonzales rulings. Where are the others on this? I could be wrong, but I took from their silence that they do not support his call to reconsider the precedents that authorized these massive federal government powers at the expense of liberty.

Justice Thomas, NFIB v. Sebelius dissent, June 2012, with no one joining:

I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and The Chief Justice correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate “economic activity [that] substantially affects interstate commerce.” United States v. Lopez, 514 U. S. 549, 560 (1995) . I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (Thomas, J., concurring); see also Lopez, supra, at 584–602 (Thomas, J., concurring); Gonzales v. Raich, 545 U. S. 1–69 (2005) (Thomas, J., dissenting). As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point. -----------------

The Kelo decision contained another Justice Thomas opinion with no one joining him. This is only an excerpt of a longer opinion.

Kelo v. New London, Justice Thomas dissenting, June 2005

Long ago, William Blackstone wrote that “the law of the land … postpones even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134—135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “ ‘[P]ublic [P]urpose’ ” Clause, ante, at 9—10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”

I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. Ante, at 1—2, 8—13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them. ... More at link:http://www.law.cornell.edu/supct/html/04-108.ZD1.html